In the case of SAMANCOR CHROME LTD T/A SAMANCOR EASTERN CHROME MINES V NUM OBO MATSHEBELE AND OTHERS (JA69/2022) [2024] ZALAC 40 (6 SEPTEMBER 2024) the Labour Appeal Court heard an appeal by the employer in its attempt to overturn a Labour Court ruling.
The case arose when the employer claimed that the employee had fraudulently used company loyalty points to make personal purchases on four occasions without permission.
These allegations were effectively treated as theft and formed the basis of the disciplinary action and subsequent dismissal.
The matter was referred to arbitration through the CCMA. At arbitration, the evidence led by the employer was found wanting.
A report was compiled by forensic investigators, but was not formally introduced into evidence.
The author of the report was also not called to testify, rendering the document hearsay and inadmissible in the absence of agreement between the parties.
The employer’s case suffered further from poor presentation, with no clear chain of events or direct evidence linking the employee to the alleged misconduct.
The only witness called by the employer was a Pick n Pay assistant manager, who explained how the Smart Shopper system works.
However, she lacked first-hand knowledge of the incident and relied on hearsay conversations with another employee, who had allegedly received a suspicious call from someone claiming to be the cardholder.
This evidence failed to directly implicate the employee.
The employee, for his part, admitted to using a card not in his name but explained that it had been loaned to him by a man named Ernest as a way to settle a debt for car parts.
He alleged that Ernest, whose full identity and whereabouts were unknown, had authorised the use of the card and its points.
The Arbitrator concluded that while there was strong suspicion against the employee, the evidence did not support a finding of guilt.
This decision was upheld by the Labour Court, which dismissed the employer’s review application.
Before the Labour Appeal Court, the only argument advanced by the employer was that the Arbitrator had incorrectly applied the criminal standard of proof rather than the civil one.
While the Court acknowledged that such an error might be inferred from the arbitrator’s reasoning, it held that the point was moot since the employer had failed to present a viable case in the first place.
The Court found that the case lacked substance, and criticised the employer for its inept presentation and failure to call key witnesses.
The judge described the appeal as “hopeless” and likened the effort to pursuing a stillborn case.
The Court found that the employer’s conduct warranted a costs order due to the unnecessary burden placed on the judicial system by persisting with an unmeritorious appeal.
The judgment thus reaffirmed the importance of proper case preparation and evidence presentation, especially for well-resourced employers, and underscored the duty not to waste limited court time with baseless litigation.
In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law.
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